By a MetNews Staff Writer
The California Supreme Court’s Committee on Judicial Ethics Opinions yesterday released a draft formal opinion on how judges should respond to requests by family members for legal advice, acknowledging that a touchy situation is presented, and shying away from pinpointing just where permissible helpfulness ends and the impermissible practice of law begins.
It says that a judge may provide “a sympathetic ear and a shoulder to cry on,” but can’t be the family member’s legal counselor.
The draft opinion, sent out for public comment, declares:
“If there is no precedent that would resolve whether advising a family member in a given circumstance would constitute the practice of law. the judge should evaluate whether providing the requested advice would undermine the dual purposes underlying the prohibition on judicial practice of law. to: (1) ensure the performance of official judicial duties; and (2) maintain the integrity of the judiciary. If the judge’s advice would not align with these purposes, then it is ethically impermissible.”
After reciting that a judge can’t be paid for giving legal guidance, or help a family member in a context that could give rise to a recusal or the appearance of being an advocate or acting unethically, or provide assistance to such an extent as to detract from judicial duties, the opinion says:
“[A] judge can provide limited law-related advice to a family member. Such advice may include statements of law, explanations of court procedures and court rules, and guidance about legal requirements, similar to the kinds of information that the judge would be able to provide a self-represented party appearing before the judge’s bench. A judge also may provide advice relating to a matter in winch the judge is personally involved when the judge is acting in his or her own personal interest.
“The risks that a judge would be engaged in the practice of law when advising a family member are lowered if the judge limits the advice given to the kind of guidance and information that a nonlawyer might provide a family member in a similar situation and, in addition, if the judge does not appear publicly on behalf of the family member or act in a representative capacity.”
The opinion acknowledges:
“It can be hard to resist the human impulse to assist family members when they ask for advice. Whether out of love, obligation or a sense of responsibility to ‘one of their own,’ many parents, children, siblings and other relatives would not think twice about providing whatever kin of advice they can to a member of their family who needs guidance, even when the advice relates to a legal matter. For a judge, however, the decision whether to advise a member of the judge’s family on law-related matters can be complicated, and often difficult. Family members who are certainly aware of the judge’s professional background may expect that, in light of the normal instinct to assist loved ones, the judge would draw on his or her legal training and experience to help them. Family members seeking advice may not be aware that the judge, although naturally inclined to help, is prohibited by the Constitution and by the judge’s ethical obligations from practicing law on the family members’ behalf.”
“Indeed, despite having been admitted and licensed to practice law, judges cease to be members of the Bar during their period in office….These restrictions can put judges in an awkward situation of having to decline a request for legal advice, or to limit the kind of information and guidance that they can provide family members who come to them with questions about law-related matters. Determining what is permissible advice, on the one hand, and what is prohibited law practice on the other, can also be difficult.”
In resolving the question of whether to provide help in a given circumstance, the draft opinion says, a judge should consider whether obliging would diminish the time devoted to judicial duties and do anything to mar the image of the judiciary.
The opinion says that if a family member needs to send a letter of demand, the judge may act as “a scrivener to fill in the blanks of an incomplete draft with information that the family member provides or that is generally known,” but giving advice as to what to include in the letter is another matter. In that instance, the opinion says, the judge, “must consider whether providing such guidance would put the judge in the role of an advocate, either on behalf of the family member or of a legal position that advances the interests of the family member, and for that reason would be impermissible.”
“Looking at another scenario, a judge would be permitted to assist a family member asking for help with an employment offer by discussing standard, purely business terms (e.g.. amount of compensation, location of the position, hours required, etc.) included in the offer. It may also be permissible for the judge to provide generalized, abstract information about provisions usually included in a standard employment offer. But before discussing any of the law-related terms actually included in an offer, or advising the family member on terms that may be missing from it. the judge should evaluate whether such advice would cross the line to advocacy or negotiation and therefore constitute the practice of law.”
The committee advised that comments on the proposed draft are due March 22. The contact person is committee counsel John S. Throckmorton; his email address is:firstname.lastname@example.org.
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